Drone Warfare and the Superpower’s Dilemma (Part 1)

The United States has been in a continuous—or, at least, uninterrupted—state of armed conflict since 2001, and there is no end in sight. The strategies and technologies, as well as the locales of engagement and designated enemies of this “’global’ war on terror” have changed considerably over the past fourteen years. Nevertheless, the US government still relies on the Authorization for Use of Military Force (AUMF), passed by Congress on 14 September 2001 (three days after the 9/11 terrorist attacks), as the legal authority to bomb people in Afghanistan, Pakistan, Yemen, and Somalia, in Iraq since the occupation (the 2003 invasion was authorized under a different AUMF), in Libya since 2012, and most recently in Syria. This expanding conflict is not actually the same in any empirical sense, but the 2001 AUMF continues to be relied on because of the plasticity of the label of terrorism and the fact that the war against it has neither been won nor lost. This ability to continue fighting without losing and the inability to stop without winning could be described as “the superpower’s dilemma.”

The most significant change over the course of the “war on terror” is the escalating use of armed drones (unmanned aerial vehicles, or UAVs) to target geographically diffuse and unconventional enemies. Drones were first used by the military for surveillance and reconnaissance during the Vietnam War. The arming of drones in 2001 coincided with the start of the “war on terror.” And the “war on terror” initiated the US government’s claim that “targeted killing”—executing individuals outside of the context of combat and not on any battlefield in a literal sense—is “legal” and that it falls within the rubric of “war.”

Targeted killing operations with drones started during the Bush administration but have become the centerpiece of US counter-terrorism strategy since 2009 under the Obama administration. These developments are reflected in the fact that, since 2004, drone strikes have increased by 1,200 percent, and today more drone operators are being trained than all other types of military pilots put together.

The central question I address in this two-part article is how the availability of armed drones, as a technological asset, has come to dominate the course and contours of military strategy for the “war on terror.” This begs the question whether the use of armed drones actually serves a strategic end-game, as proponents would claim. Officially, the strategic end game in what has become the United States’ longest war is to destabilize, degrade and destroy terrorist organizations. Serving this strategic vision (if one can call it that) through drone strikes is premised on notions that national security is enhanced by “killing bad guys” and that the enemy is finite. However, both presumptions are contradicted by the fact that the war is expanding geographically and the enemies are multiplying.

My analysis highlights three main issues: 1) why drone strikes for targeted killing have superseded capture and combat in US counter-terrorism strategy; 2) how officials explain and justify the strategic logic of remote killing; and 3) why drones seem to provide a technological answer to the superpower dilemma of how the United States can continue to “stay in the fight” without a significant commitment of “boots on the ground.” The conclusion is that bombing operations and aerial campaigns are incapable of achieving the declared security goals that their use aims to serve. On the contrary, drone warfare has been an important factor in the continuation of the “war on terror.”

Kill or Capture after 9/11

The original enemies in the “war on terror” were those responsible for the 9/11 attacks, al-Qaeda, and their Afghan hosts, the Taliban. The US government invoked the right of self-defense against “terrorists” and “terrorism” as justification to launch the war. The military campaign started in Afghanistan in October 2001 with United Nations Security Council endorsement, strong international support, and a large coalition of allies.

Although the Taliban were the internationally recognized rulers of Afghanistan at the start of the war, US decision makers and government lawyers conceptually stripped them of their state status and declared Afghanistan a “failed state” in order to make this a non-international armed conflict—an asymmetric (i.e., unconventional) war against stateless enemies. One motivation for this interpretive move was to enable the Bush administration to claim the right to fight this war unfettered by the rules and restrictions of the 1949 Geneva Conventions. This treaty is the main body of international humanitarian law (IHL), which—with the exception of Common Article 3—governs inter-state (i.e., conventional) wars.

The “war on terror,” from the outset, has involved a transnational manhunt. On 17 September 2001, President George W. Bush issued a secret finding authorizing the CIA, a civilian agency, to capture or kill leaders of al-Qaeda and other terrorist organizations. This paramilitary mandate was global. While the CIA had been operating surveillance drones over Afghanistan since 2000, on 18 September, the day after the presidential finding was issued, the CIA sent the first armed Predator drone, launched from Uzbekistan, into Afghan airspace in search of al-Qaeda leader Osama bin Laden and other 9/11 plotters.

However, when the war started and for the following five years, capture was strategically preferred in order to use interrogation to compensate for the dearth of information about al-Qaeda and the Taliban, and to acquire actionable intelligence about terrorist networks and future plots. The intelligence deficit was compounded and complicated by the fact that, following the start of the military campaign in Afghanistan, leaders and militants fled the country and went into hiding or relocated in other countries. In the hunt for intelligence that would lead to the people being hunted, over time thousands of men and boys were detained in Afghanistan by the US military. Some were sold for bounty by northern Afghan warlords or the Pakistani intelligence service, others were picked up by US or coalition forces in sweeps and targeted raids.

On 13 November 2001, President George W. Bush issued a military order declaring that the enemies in this war were “unlawful enemy combatants”—that is, neither soldiers nor civilians, and therefore having no status or rights under IHL. This commander-in-chief declaration functioned, in effect, as a license for torture and cruel treatment in military interrogation and detention operations. Despite the fact that IHL rules are enshrined in the Uniform Code of Military Justice, which governs the US military, they were disregarded by on-the-ground commanders who were responding to intense pressure from the Pentagon for actionable intelligence. In December 2001, the naval base at Guantánamo Bay was designated as the site for long-term interrogation and incommunicado detention by the military. The first prisoners were transferred to Guantánamo on 11 January 2002.

Individuals who were captured by or transferred to the CIA were termed “high value detainees” (HVDs). Some were held for years in geographically dispersed secret prisons (black sites) run by the Agency and others were extraordinarily rendered (i.e., extra-legally transferred) to other countries for interrogation. The first HVD, Abu Zubaydah, was captured in March 2002. He was (mistakenly) assumed to be a high-level al-Qaeda leader. The CIA employed psychologist contractors to conduct his interrogation, and they worked in constant communication with CIA headquarters and the White House. Abu Zubaydah’s interrogators launched into a regimen of practices so violent, degrading and humiliating that by the summer of 2002, the CIA started worrying about future consequences, and requested further legal authorization for its interrogation program. Several lawyers in the Justice Department’s Office of Legal Counsel produced memoranda interpreting the law to allow the CIA to continue using interrogation and detention practices that were intended to produce a condition of “disorientation, disability and dread.” This “golden shield” legal reasoning which was produced for the CIA “migrated” via the White House to the Pentagon and to military facilities in Afghanistan and Guantánamo.

Taking the “War on Terror” to Iraq

President Bush and other top administration officials—notably Vice President Dick Cheney and Defense Secretary Donald Rumsfeld—aspired to extend the “war on terror” to Iraq. One means of legitimizing this aspiration was to persuade the US public (and the international community) of a link between the regime of Saddam Hussein and al-Qaeda because the AUMF included language authorizing the use of force against nations that aided the 9/11 attacks. The link that the Bush administration presented to make the case for war turned out to be based on a false statement tortured out of a prisoner named Ibn al-Shaykh al-Libi who had been extraordinarily rendered by the CIA to Egypt. The Bush administration also crafted a self-defense argument that Iraq’s weapons of mass destruction (WMD) posed an imminent threat. This, too, was a false claim based on fabricated documents about the transfer of yellowcake (refined uranium ore) from Niger to Iraq, and the false claim was reinforced by the political choice to reject weapons inspectors’ informed opinion that Iraq’s WMD program was defunct.

In the buildup to war, Iraq was indisputably a conventional state. Therefore a different authorization to use force was needed, which Congress passed in October 2002. The Iraq invasion commenced in March 2003 with far less international support. The war started with an aerial campaign of “shock and awe” followed by a ground invasion. The first phase succeeded—perhaps more than military strategists had anticipated—in causing the Iraqi regime to collapse and leaders to vanish into hiding, turning the Iraq war into a manhunt as well. The dismantlement of the state was furthered by occupation administrator Paul Bremer’s decision to de-Ba’athify the country. The Iraqi army was disbanded and Ba’ath party members—which encompassed virtually all employees of the fallen state—were excluded from public institutions in “liberated” Iraq.

The consequences of Bremer’s decision were devastating. By the summer of 2003, a violent insurgency against the occupation had started. This asymmetric violence was compounded by sectarian mobilizations and internecine bloodletting, turning occupied Iraq into an unconventional warscape. Thousands of Iraqis were detained in inhumane conditions and violently interrogated in a desperate quest for intelligence.

The invasions and occupations of Afghanistan and Iraq, rather than achieving the strategic goal of defeating al-Qaeda and “affiliated organizations,” contributed to the spread and transmutation of the franchise. Yemen became the hub for al-Qaeda in the Arabian Peninsula. Somalia became the hub for the al-Qaeda-affiliated al-Shabab, Nigeria for Boko Haram, and regions of the Sahara and Sahel for al-Qaeda in the Islamic Maghreb. In occupied Iraq, previously nonexistent links were forged through the establishment of al-Qaeda in Iraq; elements of this group—which included former officers of the Iraqi military—later formed the Islamic State in Iraq and Syria (ISIS) which asserted its independence from al-Qaeda in 2013. ISIS currently controls large swaths of Iraq and Syria and has claimed responsibility for attacks in a number of other countries. Jihadi organizations in countries as far flung as Indonesia and Mauritania have mobilized or seen their ranks swell.

Targeted Killing from the Margins to the Center of Counter-terrorism Policy

The practice of targeted killing by means of armed drones started in Afghanistan. The first CIA operation occurred in February 2002. The identities of the people who were targeted in this strike were unknown, but it was authorized because the group included a “tall man” who was thought to be, maybe, Osama bin Laden; he wasn’t.

Beyond Afghanistan, the Bush administration authorized targeted killing-by-drone operations against suspects whose capture was deemed (or claimed) impossible or too risky. The first CIA operation outside of Afghanistan occurred in a remote region of Yemen on 3 November 2002 when a Predator drone launched from a base in Djibouti shot a Hellfire missile into a car. The target was Qa’id Salim Sinan al-Harithi. One of the other six passengers killed in the strike, Kamal Darwish, was a US citizen, but his death was regarded as “collateral damage” because he was not the target. Afterwards, officials justified the operation by proclaiming that because Harithi was a member of al-Qaeda who allegedly was involved in the 2000 bombing of the USS Cole, and because his arrest was not possible, targeted killing was a legitimate tactic, even against a person located in a country not at war with the US. However, the UN Special Rapporteur for Extrajudicial, Summary, or Arbitrary Executions concluded that the Yemen strike “constitutes a clear case of extrajudicial killing.”

During the Bush administration, targeted killing by drones was done primarily by the CIA. Although the military’s Joint Special Operations Command (JSOC) had its own fleet of armed drones, its units operated mainly through manned modes of attack; JSOC’s motto for kill operations was “find, fix, finish.” Targeted raids by JSOC were introduced in Iraq in 2006 as part of the “surge” to quell the insurgency, and then back to Afghanistan in 2009 when a surge was mounted in that country. But as noted above, for the first five years of the “war on terror,” capture was the preferred strategy in the manhunt for shadowy enemies and intelligence about elusive threats.

The strategic choice between capturing and killing terror suspects and militants shifted decisively in 2006. This shift was in large part a result of political and legal blowback for the Bush administration’s decisions to authorize torture, cruel treatment, and indefinite, incommunicado detention of prisoners held by the military and the CIA. The turning point was the Supreme Court’s June 2006 decision in Hamdan v. Rumsfeldin a case challenging the legality of military commissions as a venue to prosecute Guantánamo prisoners. The Court ruled that the presidentially-created commissions were unconstitutional (they were restored later that year when Congress passed the Military Commissions Act). But the strategic shift-inspiring feature of the Hamdan decision was the Court’s conclusion that Common Article 3 of the Geneva Conventions does apply to all wartime prisoners in US custody, and therefore torture, as well as cruel, inhumane and degrading treatment are prosecutable offenses. President Bush criticized the decision, but his administration nevertheless emptied the CIA black sites and relocated fourteen HVDs to Guantánamo. After that, transfers to Guantánamo tapered off, and halted entirely in 2008. That year, drone strikes increased by ninety-four percent from the previous year.

In January 2009 when Barack Obama assumed the presidency, he signed an executive order to re-prohibit practices that constitute torture, and formally ended the CIA’s role in interrogation and detention operations. He also signed an executive order pledging to close Guantánamo within one year because it had become such an internationally reviled symbol of the excesses of the previous administration. The disgraceful legacy of torture coupled with the multitude of cases to challenge aspects of post-9/11 detentions and the treatment of prisoners (many of which continued to be brought and litigated during the Obama administration in federal and foreign courts) had made capture a political liability. This liability was compounded by domestic politics; the Republican Party opposed President Obama’s anti-torture reforms and advocated the resurrection of “enhanced interrogation techniques” (the official euphemism for US torture), and there was substantial bipartisan opposition to the closing of Guantánamo. If terror suspects were to be captured, significant elements in Washington would want them sent to Guantánamo and interrogated violently. Consequently, while kill-or-capture both remained strategic options in principle, the Obama administration rarely authorized the capture of high-level suspects.

The Obama administration, following the Bush administration, has justified the globalized prerogative to kill suspects on the basis of the 2001 AUMF, which set no territorial limits on the government’s response to terrorism. However, President Obama introduced a new feature into the program: the authorization to target specific citizens abroad. To date, at least five Americans have been killed by drone strikes, some targeted and others collateral damage. The most infamous of these was the targeted killing of Anwar al-Awlaki in Yemen in a September 2011 strike that also killed US citizen Samir Khan, and, in a separate strike the following month, al-Awlaki’s sixteen-year-old son Abdulrahman. Because of the secrecy shrouding the drone program, it is unknown whether Abdulrahman was the target of the strike that killed him.

The Strategic Logic of Remote Killing

In response to criticisms and questions about the expanding but highly secretive drone warfare and the authorization to target citizens, top officials in the Obama administration were dispatched to make public speeches about the legality and efficacy of the program in general terms while maintaining that the planning and conduct of such operations are classified. For example, State Department Legal Advisor Harold Koh, who had decried drone strikes as extrajudicial killings prior to joining the Obama administration, became a champion of their legality during his time in office. In a 25 March 2010 speech to the American Society of International Law, Koh stated:

[I]n this ongoing armed conflict, the United States has the authority under international law, and the responsibility to its citizens, to use force, including lethal force, to defend itself, including by targeting persons such as high-level al-Qaeda leaders who are planning attacks… Of course, whether a particular individual will be targeted in a particular location will depend upon considerations specific to each case, including those related to the imminence of the threat, the sovereignty of the other states involved, and the willingness and ability of those states to suppress the threat the target poses.

Officials’ public statements tend to emphasize a common set of points: targeted killing is a legitimate form of national self-defense and comports with international law; using drones for remote killing operations falls within the rubric of war; waging this geographically unbounded war is the state’s right (at least the United States’ right); the intelligence upon which targeting decisions are based, while entirely secret, is reliable; and national security is enhanced through these operations. Leaving aside the highly debatable claim that targeted killing is legal, these statements can be read as non-classified summations of the strategic logic of drone strikes. The grounding claim is that drones are a technological asset used to thwart imminent threats. Indeed, every government has a right to defend itself and its citizens against an imminent threat.

In this context, however, official assessments of both the imminence and the nature of the threat are classified. Therefore, the security that drone strikes ostensibly enhances must be accepted by those outside of decision-making circles on a “just trust us” basis. According to a Justice Department white paper about the drone program that was leaked to NBC News in February 2013, the definition of “imminence” is being expanded: “The condition that an operational leader present an ‘imminent’ threat of violent attack against the United States does not require the United States to have clear evidence that a specific attack on U.S. persons and interests will take place in the immediate future.” Even by this expanded definition, the escalating number of strikes and their geographical widening would suggest that, if the government’s justification for strikes is accurate, threats of an imminent nature are on the rise.

In May 2012, the Daily Beastand the New York Timespublished exposés about decision-making for targeted killing operations. According to the Times, “Mr. Obama has placed himself at the helm of a top secret ‘nominations’ process to designate terrorists for kill or capture, of which the capture part has become largely theoretical.” Obama “signs off on every strike in Yemen and Somalia and also on the more complex and risky strikes in Pakistan.” Both articles describe “personality strikes,” which target specific individuals, and “signature strikes,” which target “groups of men who bear certain signatures, or defining characteristics associated with terrorist activity, but whose identities aren’t known.” (President Bush had authorized the first signature strikes in Pakistan in 2008.) Both articles also explain the administration’s method for deflecting criticism of civilian casualties by counting all military-age males in a strike zone as combatants “unless there is explicit intelligence posthumously proving them innocent.”

In October 2012, the Washington Post broke the story that since 2010, the CIA’s Counter-Terrorism Center has been developing a secret blueprint, called a “disposition matrix,” to coordinate the separate but overlapping CIA and JSOC targeting lists and drone programs. The disposition matrix “is a single, continually evolving database in which biographies, locations, known associates and affiliated organizations are all catalogued.” The names on the matrix, the criteria for being listed, and even the organizations on the list are secret.

The National Security Agency’s global metadata surveillance program feeds the targeted killing program by providing information about the cell phones of disposition matrix targets to JSOC or the CIA. A motto popular with the NSA’s Geo Cell division is: “we track ‘em, you whack ‘em.” The existence of this program was one of the revelations contained in documents leaked by NSA whistleblower Edward Snowden, and was confirmed by two former JSOC drone operators. As reported by The Intercept, “the NSA ‘geolocates’ the SIM card or handset of a suspected terrorist’s mobile phone, enabling the CIA and US military to conduct night raids and drone strikes to kill or capture the individual in possession of the device.” The targeting of phones rather than people amounts to “death by metadata.”

Official claims that drone strikes are “surgical” and “precise” and cause very few civilian casualties are belied by mounting evidence to the contrary. A Pakistan-based project by the Bureau of Investigative Journalism, Naming the Dead, has been working to identify people killed by CIA drones in that country; as of July 2014, of the 2,342 people reportedly killed in this manner, over 700 had been identified, almost half of whom—323—are civilians, including ninety-nine children. In November 2014, the London-based legal organization Reprieve published a report analyzing drone strikes targeting forty-one specific individuals, which resulted in an estimated 1,147 deaths. According to Reprieve’s Jennifer Gibson, “Drone strikes have been sold to the American public on the claim that they’re ‘precise.’ But they are only as precise as the intelligence that feeds them. There is nothing precise about intelligence that results in the deaths of 28 unknown people, including women and children, for every ‘bad guy’ the US goes after.”

In a national security speech on 23 May 2013, President Obama announced that plans were underway to “institutionalize” the targeted killing program in order to set clearer standards and procedures. He also announced his intention to shift control of most drone strikes from the CIA to the military in keeping with his larger goal of reversing the paramilitarization of the Agency. That shift, however, was blocked by Congress, which inserted a secret provision into the massive 2014 federal spending bill that restricts “the use of any funding to transfer unmanned aircraft or the authority to carry out drone strikes from the CIA to the Pentagon.” Obama tried again in 2015 to maneuver the shift, but again Congress blocked the move.